County joins kayakers in water-rights battle

Should cities and towns in Colorado be allowed to control stream flows so that rafters and kayakers can have a good run?

That, essentially, is the question that the Colorado Supreme Court is being asked to consider in a legal case that is pitting mountain communities against water-hungry politicians and bureaucrats on the Front Range.

The Pitkin County commissioners lined up yesterday next to kayakers and nearly every other mountain community in the 3-year-old case. They join more than 50 other government agencies in the case of Colorado State Engineer and the Colorado Water Conservation Board v. The City of Golden.

The state Supreme Court’s ruling, which could come as early as this summer, will have a profound effect on the future of water-based recreation on the Western Slope.

Using Colorado’s arcane and complicated laws that govern the use of water, the city of Golden obtained control over the spring and early summer stream flows in Clear Creek. The basis for Golden’s control is a kayak water park, with manmade embankments and outcroppings, that is host to world-class kayaking competitions.

After the park’s construction in 1998, the city was granted a water right to ensure that a minimum of 1,000 cubic feet per second flow through the stream during kayaking season. That’s according to information provided to the county commissioners by attorney Taylor Hawes.

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Breckenridge, Vail and Aspen have applied for similar stream-flow rights, so the case has local implications.

Golden’s application drew protests from a number of Front Range communities that are dependent on water-diversion projects from the Western Slope to support growth. It also drew opposition from the Colorado Water Conservation Board, which controls the right to set minimum stream flows that are meant to protect the ecological viability of rivers and creeks.

After the state water court ruled in favor of Golden earlier this year, the water conservation board and the state engineer appealed to the Colorado Supreme Court. Hawes told the commissioners yesterday that a number of Front Range communities that depend on water from mountain streams have filed briefs in support of the water conservation board’s appeal.

Hawes works for the Northwest Colorado Council of Governments, a regional agency with 47 member governments, from county governments to tiny water and sanitation districts. Her meeting with the county commissioners was aimed at getting one of the last holdouts – Pitkin County – to sign on to the Council of Governments’ brief.

The commissioners had resisted joining in on the brief because of concerns raised about the effects of such parks on future water use by the Colorado River Water Conservation District. The district happens to be the only member agency that has not signed on to Council of Governments brief.

One concern was that recreation parks could be used by thirsty communities like Colorado Springs as an easy avenue to secure water rights for anticipated development. The “use it or lose it” provision of Colorado water law requires that water actually be used in order to keep the right to use it.

County Commissioner Mick Ireland speculated that Colorado Springs could build a water park to gain control of spring runoff and then reappropriate the right to industrial or residential uses.

“It could be used as a cheap way to gain water rights that would be used for an industrial use later on,” Ireland said.

The county commissioners were also concerned that if Aspen gained control of the spring runoff flows, it could somehow hamper the county’s ability to protect wetlands it owns upstream from the city’s kayak park in Rio Grande Park.

But Hayes assured the commissioners that state law already addresses both concerns. Construction of water parks to secure water rights for another, yet-to-be defined need was banned in a law adopted last year in response to the Golden case. And state law does not permit the county to secure water rights to protect stream flows and the environment – that right belongs solely to the water conservation board.

If the state rules against the city of Golden, Hawes said Front Range communities could begin diverting more water earlier in the year from streams throughout the Western Slope. As an example, she noted that the Blue River in Summit County has become a trickle of its former self.

Historically, the Blue supported kayaking and rafting with stream flows of 1,800 cubic feet per second at the height of the spring runoff. In recent years however, Denver has been taking its maximum allotment throughout the spring and summer, reducing the stream flow to just 50 cubic feet per second during runoff.

“I’m pretty comfortable with what they are doing,” said Commissioner Jack Hatfield in support of the Council of Governments.

The case is scheduled to go before the Supreme Court later this spring, Hawes said.